Idaho abortion lawsuit may be headed to Supreme Court

By Sarah KliffSeptember 2, 2011

(Manuel Balce Ceneta/AP)

The lawsuit, filed Wednesday in an Idaho-based federal court, challenges the constitutionality of an abortion ban that the state instituted earlier this year. The restriction bars abortion after 20 weeks of pregnancy on the basis that at that stage the fetus can feel pain. The Idaho law is one of six late-term abortion bans, also based on the idea of fetal pain, that states have signed into law over the past two years. They have all stood unchallenged until now.

The reproductive health community has been hesitant to take on the late-term bans. Advocates widely believe that such bans violate constitutional protections for abortion. But there’s concern that the sitting high court won’t be an ally on the issue. Advocates view some recent decisions, particularly a 2003 ruling that upheld the Partial Birth Abortion Ban Act, as a sign that the Supreme Court could use a new case to further restrict women’s access to abortion.

It’s telling, then, that none of the major groups that tend to litigate on abortion issues — such as the Center for Reproductive Rights and Planned Parenthood -- are involved in the Idaho lawsuit.

Instead, it’s an individual -- Jennie Linn McCormack — who is challenging the ban. In papers filed with the U.S. District Court in Idaho, McCormack identifies herself as a mother of three who used medication to induce an abortion, when a doctor’s services weren’t available in southeast Idaho. McCormack was later charged with having an unlawful abortion, but the case was dismissed due to lack of evidence.

Nancy Northup, president of Center for Reproductive Rights, said her group’s decision not to litigate on the late-term abortion bans is based on a lack of standing: No physicians who provide late-term abortions practice in the states where it is banned.

“We make strategic decisions about when and how to fight for women’s access,” Northup said. “So, when the timing and circumstances are right, we will challenge these. In many states, its not clear there are providers who provide abortion at that point in pregnancy. You can’t challenge a law without that.”

To Northup's point, its unclear whether the court will even take up this Idaho case for this exact reason: the woman bringing the case may not actually have the legal standing to do so. Her complaint does include a criminal prosecution for a previous abortion, but that was prior to Idaho’s 20-week ban taking effect. The woman in this case contends that she and others may need abortions in the future, but that prospective-looking argument may not convince the court that the threat of injury is enough for her case to move forward.

“It’ll be very interesting to see what the court decides about her standing,” says Caitlin Borgmann, a law professor at the City University-New York School of Law, who focuses on reproductive health issues. “The Court could throw it out on those grounds. It’s going to very much depend on the particular judge and whether or not he wants to avoid reaching the constitutional merits of this case.”